Intro_continental_legal_science [Unlocked]

Questions

1)What kind of legal tradition existed in Russia before the 19th century?

2)Did legal science exist in Russia before the 19th century?

3)Did the school of natural law succeed in spreading Western legal science in Russia in the 18th century?

4)How did zakonovedenije of the first half of the 19th century differ from the legal science in France and Germany of that time?

5)Why did zakonovedenije become obsolete by mid19th century?

6)How did Russian government contribute to the foundation of the legal science in Russia?

7)Which legal school exercised the decisive influence on the foundation of the Russian legal science?

8)What scholar could take credit for founding the Russian legal science?

9)In what way did the “Great Reforms” of the 1860s contribute to the development of the Russian legal science?

10)Did the Russian legal science exercise controlling, direct, or indirect influence on the judicial decisionmaking from the 1860s to 1917?

11)Was the Russian legal science dominated by the ideology of legal positivism?

12)What kind of opposition did the western model of legal science encounter in Russia before 1917?

13)Why was the pre-revolutionary Russian legal science rejected in Soviet Russia after the Bolshevik revolution?

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Appendix

Main Abbreviations

< > – these brackets mark off the text added by the instructor of this course.

d. – died in <year>

ff. – and the pages following. i.e. – that is (from Latin id est).

Parts of Corpus Iuris are abbreviated as follows:

D. – the Digest (= Pandects) of Justinian

C. – the Code (= Codex) of Justinian

Inst. – the Institutes of Justinian

Nov. – the Novels of Justinian.

Unified Essential Glossary

ACONTRARIO (in Latin) <о т пр о тив но>г Anо argument for contrary treatment.

ADIFFINITIONE (in Latin) <о то пр е де ле >нияAn argument from a definition.

AGENERE (in Latin) <о тр о да> An argument referring to generic characteristics.

AMAIORI (in Latin) <о тбо ль ше г> оAn argument from the greater reason.

AMINORI (in Latin) <о тме нь ше г> оAn argument from the lesser reason.

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A TOTO (in Latin) <о тц е ло >г Anо argument from the whole.

AKTENVERSENDUNG (in German, 'forwarding of act(s)') <о тпр ав к ак то в> a practice in Germany between the 16th and 19th centuries meaning that a law court faced with a difficult question of law consulted the professors of a Law School, sent them the ‘acts’ of the suit and was given a binding advice.

ALLEGATION <утв е р жде ние, зая в ле ние> 1. The act of declaring something to be true. 2. Something declared or asserted as a matter of fact, especially in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its having yet been proved.

ANCIEN RÉGIME (in French) <Стар ый по р я до>кthe political and social system in France (and, by extension, in other countries of Western Europe) before the Revolution of 1789.

ARGUMENT <ар г уме нт> 1. A statement that attempts to persuade; especially, the remarks of counsel in analyzing and pointing out or repudiating a desired inference, for the assistance of a decision-maker. 2. The act or process of attempting to persuade.

ASSESSOR <засе дате ль> An assessor is a person who is an expert in a subject, especially someone asked to advise a court of law on that subject. An assessor is a person who judges the performance of someone else, for example in an exam, at an interview or at a sporting event.

AUCTORITAS (in Latin) <ав то р ите(нот сть)> or authority (in Roman law and ius commune) a power to command obedience which is based not on brutal force but on objective values of a society and approved by

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reason; 2. the binding force of a statute or a judicial decision; 3. an approval of a fact, a transation, or an act.

AXIOM <ак сио ма> An established principle that is universally accepted within a given framework of reasoning or thinking "innocent until proven guilty" is an age-old axiom of criminal law”

BARTOLISTS <бар то листы> were the late medieval jurists who built on the legacy of Bartolus of Saxoferrato (1313–1357) and shared his stance and his vision of the law.

BENCH AND BAR <суде йск ийк о р пус> Judges collectively.

BOLSHEVIK (OCTOBER) REVOLUTION OF 1917

<Ок тя бр ь ск аяр е в о люц ия1917 г.> a seizure of state power by the Bolshevik (the majority faction of the Russian Social Democratic Party) as a result of an armed insurrection in Petrograd (now St. Petersburg) on 25 October 1917; whether referred to as a revolution or a coup d'état, this seizure of power marked the radical turn in Russian history (until 1991) from bourgeois to socialist values in politics, economics, culture, and law.

BOURGEOIS LEGAL SCIENCE <бур жуазная юр испр уде нц ия> a collective name in the Soviet literature for the mainstream Western European science of the 19th and 20th centuries.

BROCARDICA (in Latin) <бр о к ар да> a statement of broad legal rules or maxims.

BUREAUCRACY <бюр о к р атия> A bureaucracy is an administrative system operated by a large number of officials depending on the state and empowered by it.

BURSARIES <стипе ндия> a scholarship to attend a college or university.

BYZANTIUM <Византия> The Byzantine Empire. А continuation of the Roman Empire in the Middle East after its division in 395 up to the

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fall of its capital Constantinople in 1453.

CANONISTS <к ано нисты> experts in canon law; medieval scholars who specialised in canon law and glossed the texts of the Gratian's Decretum and the decretals (just as the Roman texts had been glossed) and composed an apparatus on the entire collection; this term refers both to decretists and decretalists.

CASE LAW <пр е ц е де нтнопр аве о> The law to be found in the collection of reported cases that form all or part of the body of law within a given jurisdiction.

CENTRALIZATION <ц е нтр ализац ия> This word is used to express the system of government prevailing in a country where the management of local matters is in the hands of functionaries appointed by the ministers of state, paid by the state, and in constant communication and under the constant control and inspiration of the ministers of state, and where the funds of the state are largely applied to local purposes.

CIVIL LAW <г р ажданск о пре ав о> 1. One of the two prominent legal systems in the Western world, largely based on the Roman law and medieval ius commune, and still influential in continental Europe, Latin America, Scotland, and Louisiana, among other parts of the world. Also known as Romano-Germanic legal family. 2. The main division of private law in the countries of Romano-Germanic legal family.

CLERUS (in Latin) <к лир> clergy is the body of all people ordained for religious duties, especially in the Christian Church

CODE OF NAPOLEON <Ко де к сНапо ле о >на(also Code Napoléon, officially Code civil des Français, in French) is the French civil code enacted under Napoleon in 1804 as a result of a comprehensive codification of various civil laws and customs of France; in addition to unifying the civil laws of France, it provided the model of a civil code for many European countries during the 19th century, and it proved to

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be the most influential civil code in the modern history, mainly due to its clarity and coherence. In France this Code was succeeded by other major acts: the Code de procedure civil (1806), the Code de commerce (1807), the Code penal (1810), and the Code d'instruction crimenelle

(1811).

CODEX IUSTINIANI (JUSTINIAN CODE) <Ко де к сЮстиниана > A collection of imperial constitutions of the late Roman Empire drawn up by a commission of Byzantine jurists appointed by the Roman emperor Justinian, and published in A.D. 529. In the revised version of A.D. 534 the Codex contains the 12 books including the imperial constitutions of the previous collections (the Gregorian, Hermogenian, and Theodosian Codes) together with later legislation, revised and harmonized into one systematic whole. It deals with ecclesiastical law, criminal law, administrative law, and private law.

COGNITIO <р ассле до в ание> (or a cognitio extra ordinem, in Latin) in the late Roman Empire, a proceeding before an imperial magistrate rather than before an elected magistrate (praetor) or a private judge (iudex). It provided the model for the proceedings in the ecclesiastical courts in the Medieval Europe.

COLLEGIUM (in Latin) <к о лле г, ияг иль дия> a guild or a corporation of craftsmen (including that of doctors and professors) in the Medieval Europe.

COMITIVA (companionship) one of the forms of students association in the Medieval Europe

various academic works in the tradition of the medieval and early modern ius commune.

COMMENTARY (in legal science) <к о мме нтар ий> 1. an expression of opinions or explanations regarding legal texts or issues. 2. an academic work containing such opinions or explanations.

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COMMENTATORS (also CONCILIATORS, or POSTGLOSSATORS) <к о мме нтато р>ыA group of mainly Italian jurisconsults active from the mid-13th until the late 16th centuries who related Roman law to feudal and Germanic law, canon law, and other contemporary bodies of law by means of writing voluminous commentaries and giving consilia-consultations (hence, their second name, the consiliators). They are also known as the postglossators because they constituted to study Roman law after its revival in the 1lth century by the glossators.

COMMON LAW (AS LEGAL SYSTEM) <о бще епр ав о> 1. The body of law based on the English legal system (in England and its former colonies throughout the world), as distinct from a civil-law system; also called the Anglo-American system of legal concepts, together with the techniques of applying them. 2. The part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.

COMMUNIS OPINIO DOCTORUM (in Latin, 'the common opinion of the doctors') <о бще емне ниедо к то р >о вScholarly agreement on points of ius commune, collected by the glossators, the commentators, and the canonists in the later Middle Ages.

CONCEPT OF LAW <пр ав о в опое ня тие> an abstract idea regarding law.

CONCEPTUAL (ABSTRACT) JURISPRUDENCE <абстр ак тная юр испр уде нц ия> see JURISPRUDENCE OF CONCEPTS, Begriffsjurisprudenz.

CONCEPTUALISATION OF LAW <те о р е тиче ско осмысле ние пр ав а> an expresson of legal issues in a set of abstract ideas.

CONSILIUM (in plural: CONSILIA) <эк спе р тно заке люче ние, со в е> тlegal advice requested by judges, litigants or their advocates in courts and given by academically trained jurists (mainly in late medieval and early modern Italy).

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CONSTITUTIO CRIMINALIS CAROLINA (in Latin, sometimes shortened to Carolina) <Уг о ло в ноулое же ниеКар ла V> is the first body of all-German criminal law enacted under Holy Roman Emperor Charles V (Carolus, in Latin) in 1532.

CONSTITUTIONES CLEMENTINAE (in Latin) <Ко нституц ии Климе нта> A collection of decretals of Pope Clement V (in Latin, Clementus), published in 1317 by his successor, Pope John XXII, and forming the fourth of the six parts of the Corpus Juris Canonici, completed in 1502.

CORPUS IURIS CANONICI (in Latin) <Св о д к ано ниче ск о г о пр ав а> The body of the canon law, compiled from the decrees and canons of the Roman Catholic Church. The Corpus Juris Canonici began its formation the 12th century with the publication of Gratian's Decretum (c. 1140). In addition to the Decretum, it includes Raymond

of Pefiaforte's Liber Extra (1234), the Liber Sextus of Pope Boniface VIII (1298), the Clementines of Pope Clement V (1313), the

Extravagantes of Pope John XXII (1325), and Extravagantes Communes published by Pope John's successors (1499–1502). In 1582, the entire collection was edited by a commission of church dignitaries and officially named the Corpus Juris Canonici. It remained the Catholic Church's primary body oflaw until the promulgation of the Code of Canon Law in 1917, now replaced by that of 1983.

CORPUS IURIS CIVILIS (in Latin) <Св о дц ив иль но гпроав а> The body of the civil law, compiled and codified under the direction of the Byzantine emperor Justinian in A.D. 528-556. The collection includes four works – the Institutes, the Digest (or Pandects), the Code, and the Novels. The title Corpus Juris Civilis was coined in the Middle Ages to describe the whole body of civil law of the Christian world.

COUTUMES (in French) <к утюмы > Customs (or customary law) in Medieval (mainly Northern) France.

COUTUMES DE BEAUVAISIS (in French) <к утюмы Бо в е >зиa

collection of medieval customary law of the region of Beauvais (in 257

Northern France), composed by royal official Philippe de Beaumanoir in the late 13th century. The text is quite voluminous and covers a wide range of topics both on procedural and substantive law.

CULPABILITY <в ино в но >стьor blameworthiness; the quality of being culpable of committing some crime of tort.

CUSTOM <о бычай > A practice that by its common adoption and long, unvarying habit has come to have the force of law.

DECRETALISTS <де к р е талисты> a school of canonists of the 13th to 15th centuries who focused on interpreting and compiling the decretals (instead of the Decretum Gratiani) by means similar to that of the medieval commentators of the civil law.

DECRETALS (Decretales, in Latin) or DECRETAL LETTERS

(epistolae decretales) <де к р е талииили де к р е таль ныепись ма>, Canonical epistles (messages) written either by the Pope or by the Pope and his cardinals to settle controversial matters; especially, the second part of the Corpus juris Canonici, canonical epistles consisting mainly of: (1) Decretales Gregorii IX dating from about 1227; (2) Decretales Bonifacii VIII, a collection by Boniface VIII in the year 1298; (3) Ciementinae, a collection of Clement V, published in the year 1308; and (4) the Extravagantes, a collection by John XXII and other bishops.

DECRETIST <де к р е тист> In medieval universities, a scholar or a law student who focuses on commenting Gratian's Decretum; a representative of the first legal school of the Roman Catholic Church.

DECRETUM GRATIANI <Де к р еГрт ац иана> (in Latin, Gratian's Decree; the full title in Latin is Concordia discordantium canonum, or 'Agreement of Disagreeing Canons') is the first coherent and voluminous collection of medieval canons (or enactments of the medieval Church councils) and excerpts from the Church Fathers compiled by a monk Gratian around 1140, apparently, as a textbook and a reference book for the emerging discipline of canon law in Western Europe. As the title suggests, in addition ot compiling texts Gratian

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attempted to resolve various contradictions among them by means of medieval dialectics and his personal remarks (known as his sayings, or dicta). Although compiled as a private work, the Decretum provided foundation for the school of decretists and was widely cited in courts as a text of authority. Ultimately, it became part of Corpus juris canonici.

DIALECTICAL (or LOGICAL) REASONING <диале к тиче ск о е или ло г иче скроассуждее ние> is a critical examination of the truth of an opinion, especially by discussion or debate, based on the rules and methods of Aristotle's logic (such as division, definition, solving of syllogisms). Dialectics was of crucial importance for the whole legal science of ius commune enabling its representatives to solve real and apparent contradictions in texts of authority and to adapt them to the needs of medieval and early modern societies.

DIGEST OF JUSTININAN (in Latin, Digestae seu Pandectae Iustiniani) <Диг е стыЮстиниана > The 50 books constituting Justinian's Digest (one of the four works making up the Corpus Juris Civilis), first published in A.D. 533. It was the most important body of legal texts on civil law which enabled the glossators to establish the medieval legal science.

DIGEST OF LAWS (SVOD ZAKONOV) OF THE RUSSIAN EMPIRE <Св о дзак о ноРов ссийск оИймпе р ии> official and partially systematised collection of laws of the Russian Empire drawn up during the reign of Emperor Nicholas I by the commission headed by M. Speransky; first edition in 1832, subsequent editions in 1842 and 1857 in 15 volumes, covering such major subjects as the fundamental laws of the Empire (vol. 1), the civil service (vol. 3), the status of various groups of population (vol. 9), the civil laws (vol. 10), the criminal laws and punishments (vol. 15); in 1885 it was supplemented with the laws of civil and criminal procedure (vol. 16). The Svod seved as the staple of the Russian legislation well until the Bolshevik Revolution of 1917 when it was abolished together with all imperial laws.

DIGESTUM VETUS (in Latin, the 'old Digest') <Стар ые Диг е сты>

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